Opinion

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

Court: Connecticut Appellate Court
Filed: May 26, 2026
Status: Published
On the bench: Cradle; Seeley; Wilson
Cited by: 0 cases
Authority: More cited than 40.7%

“unless the state is permitted to appeal a trial court’s denial of its motion to dismiss, filed on the basis of a colorable claim of sovereign immunity, the state’s right not to be required to litigate the claim filed against it would be irretrievably lost”

How later courts described this case

“unless the state is permitted to appeal a trial court’s denial of its motion to dismiss, filed on the basis of a colorable claim of sovereign immunity, the state’s right not to be required to litigate the claim filed against it would be irretrievably lost”

Written by the judges who cited it.

The opinion

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Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

BLAKESLEE ARPAIA CHAPMAN, INC. v.

KIEWIT INFRASTRUCTURE CO. ET AL.

(AC 47355)

Cradle, C. J., and Seeley and Wilson, Js.

Syllabus

The defendant Connecticut Port Authority appealed from the trial court’s

judgment denying its motion to dismiss the plaintiff’s unjust enrichment

claim. The defendant claimed, inter alia, that the court erred in concluding

that it was not entitled to sovereign immunity. Held:

The trial court properly denied the defendant’s motion to dismiss on the

ground that it failed to meet its burden of establishing that it was an arm

of the state that was entitled to sovereign immunity, as this court was

persuaded by the defendant’s enabling legislation (§ 15-31a et seq.) that

the legislature did not intend for it to be treated as an arm of the state, and

this court’s consideration of the remaining factors set forth in Gordon v.

H.N.S. Management Co. (272 Conn. 81), employed when deciding whether

an entity properly may assert a sovereign immunity defense, did not persuade

it to the contrary.

This court dismissed the defendant’s appeal as to its claim that the trial

court erred by rejecting its argument that the plaintiff’s claim was barred

by statute (§ 49-41) because the plaintiff was protected by the posting of a

payment bond, as this court, having agreed with the trial court’s conclusion

that the defendant had failed to raise a colorable claim of sovereign immunity,

found that the trial court’s denial of the defendant’s motion to dismiss as

to this claim constituted an interlocutory ruling and, thus, was not a final

judgment for purposes of appeal.

Argued December 2, 2025—officially released May 26, 2026

Procedural History

Action to recover damages for, inter alia, unjust

enrichment, and for other relief, brought to the Supe-

rior Court in the judicial district of New London and

transferred to the judicial district of Hartford, Complex

Litigation Docket, where the court, Noble, J., denied the

motion to dismiss filed by the defendant Connecticut

Port Authority, and the defendant Connecticut Port

Authority appealed to this court. Appeal dismissed in

part; affirmed.

Linda L. Morkan, with whom were Frederick E. Hed-

berg and, on the brief, Lisa A. Andrzejewski, for the

appellant (defendant Connecticut Port Authority).

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

Patrick T. Clendenen, with whom was Jordan J. Kow-

alski, for the appellee (plaintiff).

Jeffrey J. Mirman, with whom were Luke R. Conrad

and, on the brief, Christopher B. Wiezbicki, for the appel-

lees (named defendant et al.).

Opinion

CRADLE, C. J. The defendant Connecticut Port

Authority1 appeals from the judgment of the trial court

denying its motion to dismiss the unjust enrichment

claim filed against it by the plaintiff, Blakeslee Arpaia

Chapman, Inc. The defendant claims that the court erred

in (1) concluding that it was not entitled to sovereign

immunity and (2) rejecting its argument that the plain-

tiff’s unjust enrichment claim was barred by General

Statutes § 49-41 because the plaintiff was protected by

the posting of a payment bond. We agree with the trial

court’s conclusion that the defendant is not entitled to

sovereign immunity and therefore affirm the denial of

the motion to dismiss on that ground. We dismiss the

defendant’s second claim on appeal for lack of a final

judgment.

The following facts, as alleged in or necessarily implied

from the plaintiff’s complaint, and procedural history are

relevant to our resolution of the defendant’s claims on

appeal. On December 18, 2020, Kiewit Infrastructure Co.

(Kiewit) entered into a contract with the defendant for

the construction of the project known as “Infrastructure

Improvements to Connecticut State Pier—New London,

CT” (project). On March 26, 2021, Kiewit entered into

a subcontract with the plaintiff wherein the plaintiff

agreed to provide certain labor, tools, materials, equip-

ment and supervision services for the project. Kiewit con-

tracted to pay the plaintiff $1,877,290, subject to certain

Kiewit Infrastructure Co. and Travelers Casualty and Surety Company

of America also are defendants in this case. Because this appeal concerns

only the denial of the motion to dismiss filed by the Connecticut Port

Authority, any reference herein to the defendant is to the Connecticut

Port Authority only.

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

adjustments, for its performance under the subcontract.

Specifically, the plaintiff agreed to perform work on the

project for the demolition and disposal of four existing

mooring dolphins, which was generally included and

described under the scope of work as mobilization and

demobilization; demolition and disposal; and submittals.2

On April 30, 2021, Kiewit, as principal and contractor,

and Travelers Casualty and Surety Company of America

(Travelers), as surety, agreed to the terms of a payment

bond under § 49-41 in the amount of $204,000,000 for

the protection of all persons supplying labor, materials,

and equipment furnished, used or reasonably required

for use in the construction of the project.

In July 2021, the plaintiff conducted an underwa-

ter inspection survey to determine the condition of the

mooring dolphins and piles. That inspection revealed

that the piles were substantially and materially differ-

ent from what was stated in the bid documents. Because

the piles were not structurally sound, the plaintiff noti-

fied Kiewit that the unanticipated poor condition of the

piles increased the size and scope of the work necessary

to complete the project, which would require additional

time and increase the cost of the project. With Kiewit’s

knowledge and direction, the plaintiff modified its dive

plan, project means and methods, schedule and costs to

accommodate the unforeseen and unanticipated site con-

ditions. The plaintiff completed its work on the project

on December 2, 2021. Despite numerous communications

with the plaintiff regarding the extra work required to

complete the project and the associated increased costs,

Kiewit and the defendant refused to pay the plaintiff for

the additional costs and expenses incurred by the plaintiff

in the amount of $763,497.09. Travelers refused to pay

the plaintiff under the payment bond for the extra work

performed to complete the project.

The mooring dolphins were structures that consisted of concrete

mooring blocks supported by several piles, and the plaintiff agreed

to remove and dispose of the concrete cap, concrete pile encasement,

timber rubbing strips, timber fender piles, steel bearing piles, steel

battered piles, rubber fenders, and all other items associated with the

mooring dolphins.

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

In November 2022, the plaintiff commenced this action

and, by way of a five count revised complaint filed on

February 24, 2023, alleged, inter alia, unjust enrich-

ment as to the defendant.3 The plaintiff alleged that the

defendant received a benefit from it due to the plaintiff’s

additional work on the project and that the defendant

unjustly has refused to compensate it for that work.

On April 3, 2023, the defendant filed a motion to

dismiss the plaintiff’s claim against it on the grounds

that the defendant was entitled to sovereign immunity

because it is an “arm of the state” and the claim was

barred by § 49-41 because Kiewit had secured a pay-

ment bond for the plaintiff’s protection.4 The defendant

filed a memorandum of law in support of its motion to

dismiss, to which it appended several exhibits, includ-

ing the following: an affidavit of Ulysses B. Hammond,

the executive director of the defendant; the contract

between the defendant and Kiewit; several memoranda

of understanding or agreement between the defendant

and other agencies; the defendant’s 2022 annual opera-

tions and projects report; and the defendant’s January

1, 2023 quarterly report to the Transportation Com-

mittee of the General Assembly. On April 19, 2023, the

plaintiff filed a memorandum of law in opposition to the

motion to dismiss, to which it appended an October 21,

2022 report of the Office of Legislative Research regard-

ing quasi-public agencies. On November 22, 2023, the

In its revised complaint, the plaintiff alleged the following additional

causes of action: an action for enforcement of the right to a payment

bond under General Statutes § 49-42 as to Kiewit and Travelers; breach

of contract as to Kiewit; breach of the implied covenant of good faith

and fair dealing as to Kiewit; and violations of the Connecticut Unfair

Trade Practices Act, General Statutes § 42-110a et seq., as to Travelers.

As the court later explained in its memorandum of decision: “[T]he

[defendant] argues that the plaintiff’s unjust enrichment cause of

action is barred by § 49-41 et seq. Specifically, the [defendant] asserts

that § 49-41 et seq. is modelled after the federal Miller Act, 40 U.S.C.

§ 3131 et seq. The [defendant] contends that under the federal Miller

Act, if an appropriate bond is furnished, subcontractors cannot state a

claim based on unjust enrichment because of the absence of contractual

privity. Rather, the federal Miller Act provides the subcontractor’s

exclusive remedy.” (Footnotes omitted.)

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

defendant filed a reply to the plaintiff’s opposition.5 On

January 8, 2024, the court heard oral argument on the

parties’ respective positions on the defendant’s motion

to dismiss.6

On January 25, 2024, the court filed a memorandum

of decision denying the defendant’s motion to dismiss.

The court rejected the defendant’s argument that it

was entitled to sovereign immunity on the ground that

the defendant’s enabling legislation, General Statutes

§ 15-31a et seq., plainly states that the defendant “shall

have the duty and power to . . . [s]ue and be sued in its

own name . . . .” General Statutes § 15-31b (a) (4). The

court also rejected the defendant’s argument that the

plaintiff’s claim of unjust enrichment was barred by

the payment bond under § 49-41.7 This appeal followed.

The defendant first claims that the court incorrectly

concluded that it was not entitled to sovereign immuni-

ty.8 We disagree.

We begin by setting forth the applicable standard of

review. “A motion to dismiss is the proper vehicle to

The plaintiff also filed permission to file a surreply, along with its

proposed surreply, to the defendant’s reply to the plaintiff’s opposition

to the motion to dismiss. The court declined to consider the plaintiff’s

motion for permission to file a surreply because the plaintiff failed to

timely request adjudication of that motion and the court declined to

consider the surreply because the plaintiff had not received the court’s

permission to file it as required by Practice Book § 11-10 (c).

Kiewit and Travelers also filed a partial objection to the motion to

dismiss. The court declined to consider “the pleadings filed by the

codefendants because they are not interested parties to this motion.”

Neither party requested an evidentiary hearing on the motion to

dismiss.

The court noted that a motion to strike is the proper mechanism by

which to assert such a claim but nevertheless addressed it.

Although, ordinarily, the denial of a motion to dismiss is not an

immediately appealable final judgment, the denial of a motion to dismiss

that raises a colorable claim of sovereign immunity is a final judgment.

See Shay v. Rossi, 253 Conn. 134, 165, 749 A.2d 1147 (2000) (“unless

the state is permitted to appeal a trial court’s denial of its motion to

dismiss, filed on the basis of a colorable claim of sovereign immunity,

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

assert lack of jurisdiction over the subject matter. . . .

[T]he doctrine of sovereign immunity implicates subject

matter jurisdiction and is therefore a basis for granting

a motion to dismiss. . . . [O]ur review of the trial court’s

ultimate legal conclusion and resulting [denial] of the

motion to dismiss [is] de novo. . . . Furthermore, to the

extent that we are called upon to engage in statutory

interpretation, such review is also plenary.9 . . .

“When [deciding] a jurisdictional question raised by

a pretrial motion to dismiss on the basis of the com-

plaint alone, [a court] must consider the allegations of

the complaint in their most favorable light. . . . In this

regard, a court must take the facts to be those alleged in

the complaint, including those facts necessarily implied

from the allegations, construing them in a manner most

favorable to the pleader. . . .

“In contrast, if the complaint is supplemented by undis-

puted facts established by [1] affidavits submitted in

support of the motion to dismiss . . . [2] other types of

undisputed evidence . . . and/or [3] public records of

which judicial notice may be taken . . . the trial court,

the state’s right not to be required to litigate the claim filed against

it would be irretrievably lost”), overruled in part on other grounds by

Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003).

“It is axiomatic that our objective in construing statutory language

is to ascertain and give effect to the apparent intent of the legislature.

. . . In other words, we seek to determine, in a reasoned manner, the

meaning of the statutory language as applied to the facts of [the] case,

including the question of whether the language actually does apply. .

. . General Statutes § 1-2z directs us first to consider the text of the

statute itself and its relationship to other statutes. If, after examin-

ing such text and considering such relationship, the meaning of such

text is plain and unambiguous and does not yield absurd or unworkable

results, extratextual evidence of the meaning of the statute shall not be

considered. . . . [If] a statute is not plain and unambiguous, we also look

for interpretive guidance to the legislative history and circumstances

surrounding its enactment, to the legislative policy it was designed to

implement, and to its relationship to existing legislation and common

law principles governing the same general subject matter . . . . The test

to determine ambiguity is whether the statute, when read in context,

is susceptible to more than one reasonable interpretation.” (Internal

quotation marks omitted.) Norris v. Trumbull, 187 Conn. App. 201,

209 n.8, 201 A.3d 1137 (2019).

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

in determining the jurisdictional issue, may consider

these supplementary undisputed facts and need not con-

clusively presume the validity of the allegations of the

complaint. . . . Rather, those allegations are tempered by

the light shed on them by the [supplementary undisputed

facts]. . . . If affidavits and/or other evidence submitted

in support of a defendant’s motion to dismiss conclusively

establish that jurisdiction is lacking, and the plaintiff

fails to undermine this conclusion with counteraffidavits

. . . or other evidence, the trial court may dismiss the

action without further proceedings. . . . If, however, the

defendant submits either no proof to rebut the plaintiff’s

jurisdictional allegations . . . or only evidence that fails

to call those allegations into question . . . the plaintiff

need not supply counteraffidavits or other evidence to

support the complaint, but may rest on the jurisdictional

allegations therein.

“Finally, where a jurisdictional determination is depen-

dent on the resolution of a critical factual dispute, it

cannot be decided on a motion to dismiss in the absence

of an evidentiary hearing to establish jurisdictional

facts. . . . Likewise, if the question of jurisdiction is

intertwined with the merits of the case, a court cannot

resolve the jurisdictional question without a hearing

to evaluate those merits. . . . An evidentiary hearing is

necessary because a court cannot make a critical factual

[jurisdictional] finding based on memoranda and docu-

ments submitted by the parties.” (Citations omitted;

footnote in original; internal quotation marks omitted.)

Norris v. Trumbull, 187 Conn. App. 201, 208–10, 201

A.3d 1137 (2019).

Here, neither party asked the trial court to conduct an

evidentiary hearing in order to establish jurisdictional

facts, nor do they claim on appeal that an evidentiary

hearing was necessary. We therefore limit ourselves,

in conducting our de novo review, to the factual record

as it existed before the trial court, supplemented by any

additional records of which we may take judicial notice.

See id., 211.

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

“[I]n Connecticut, [w]e have long recognized the com-

mon-law principle that the state cannot be sued without

its consent. . . . The doctrine of sovereign immunity

protects the state, not only from ultimate liability for

alleged wrongs, but also from being required to litigate

whether it is so liable. . . . The protection afforded by this

doctrine has been extended to agents of the state acting

in its behalf.” (Internal quotation marks omitted.) Id.

In Gordon v. H.N.S. Management Co., 272 Conn. 81,

861 A.2d 1160 (2004), our Supreme Court established the

following analytical framework to employ when deciding

whether an entity properly may assert a sovereign immu-

nity defense. “[T]he criteria for determining whether a

corporate entity is an arm of the state entitled to assert

sovereign immunity as a defense are whether: (1) the

state created the entity and expressed an intention in the

enabling legislation that the entity be treated as a state

agency; (2) the entity was created for a public purpose or

to carry out a function integral to state government; (3)

the entity is financially dependent on the state; (4) the

entity’s officers, directors or trustees are state function-

aries; (5) the entity is operated by state employees; (6) the

state has the right to control the entity; (7) the entity’s

budget, expenditures and appropriations are closely

monitored by the state; and (8) a judgment against the

entity would have the same effect as a judgment against

the state. To establish that an entity is an arm of the

state, an entity need not satisfy every criteria. Rather,

[a]ll relevant factors are to be considered cumulatively,

with no single factor being essential or conclusive. . . . We

recognize that these criteria are somewhat interrelated

and overlapping. For example, a determination that an

entity is completely financially dependent on the state

could lead to an inference that the entity is controlled

by the state. Similarly, a determination that the state

has the right to control the entity could lend support to a

determination that a judgment against the entity would

affect the state.” (Citation omitted; footnotes omitted;

internal quotation marks omitted.) Id., 98–100. This

court has held that, “[b]y indicating that an entity ‘need

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

not satisfy every criteria,’ the Gordon court implicitly

placed the burden on the entity attempting to establish

its entitlement to sovereign immunity.” Norris v. Trum-

bull, supra, 187 Conn. App. 214.

Our Supreme Court also has indicated that “[w]hen

applying the various factors under Gordon, courts must

remain cognizant of the rationale underlying the doctrine

of sovereign immunity. Although, in the past, we have

explained that doctrine in theoretical terms, namely,

that there can be no legal right as against the authority

that makes the law on which the right depends . . . [t]he

modern rationale for the doctrine . . . rests on the more

practical ground that the subjection of the state and

federal governments to private litigation might consti-

tute a serious interference with the performance of their

functions and with their control over their respective

instrumentalities, funds and property. . . . Pursuant to

this rationale, the doctrine protects the state from uncon-

sented to litigation, as well as unconsented to liability.”

(Citations omitted; internal quotation marks omitted.)

Rocky Hill v. SecureCare Realty, LLC, 315 Conn. 265,

282, 105 A.3d 857 (2015).

In this case, the trial court rejected the defendant’s

claim of sovereign immunity solely on the basis of the

language in the defendant’s enabling legislation that

provides that the defendant can “[s]ue and be sued.” See

General Statutes § 15-31b (a) (4). The plaintiff argues

that this language plainly and unambiguously estab-

lishes that the defendant is not an arm of the state that

is entitled to sovereign immunity. Even if we were to

agree that that language is clear and unambiguous,10 our

Supreme Court has held, and we are bound by its holding,

that an expressed “intention in the enabling legislation

that the [defendant] be treated as a state agency” is only

one of eight factors for consideration in determining an

entitlement to sovereign immunity. Gordon v. H.N.S.

Management Co., supra, 272 Conn. 98–100. We there-

fore are persuaded by the defendant’s argument that the

We interpret this language later in this opinion.

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

court should have applied the Gordon factors to deter-

mine whether it is an arm of the state that is entitled

to sovereign immunity.11 Accordingly, we consider the

eight Gordon factors as instructed by our Supreme Court

and, on the basis of our consideration of those factors, we

agree with the trial court’s conclusion that the defendant

is not entitled to sovereign immunity.12

We begin with an examination of the facts and analy-

sis in Gordon, in which our Supreme Court held, in two

actions seeking uninsured and underinsured motorist

benefits, that a private management company, which

had contracted with the state to operate certain of its

public bus services, shared the state’s sovereign immu-

nity. Id., 85, 92. In Gordon, the state, pursuant to an

expressly articulated legislative policy, essentially had

taken over a formerly privately owned bus system, then

hired management companies such as the defendant

to run that system for the benefit of the public. Id.,

85. The defendant was entirely dependent on the state

because the state owned all of the assets required to run

the system, including the buses, the buildings in which

the defendant had its offices and everything in those

buildings, and, further, the defendant was required to

The defendant argues, as it did before the trial court, that our

Supreme Court’s decision in Connecticut Humane Society v. Freedom of

Information Commission, 218 Conn. 757, 591 A.2d 395 (1991), applies

when determining whether an entity is an arm of the state that is entitled

to sovereign immunity. In Gordon, however, our Supreme Court recog-

nized the critical distinction between the inquiry presented in the two

cases, stating: “Although we find Connecticut Humane Society instruc-

tive, we recognize that the considerations underlying a determination

as to whether an entity is a public agency for purposes of the [Freedom

of Information Act] are not necessarily the same as those underlying a

determination as to whether an entity is entitled to assert a sovereign

immunity defense.” Gordon v. H.N.S. Management Co., supra, 272

Conn. 96 n.15. Indeed, as the trial court aptly noted, General Statutes

§ 1-120 (1) defines the defendant as a quasi-public agency. Although

that designation is not in dispute, it does not resolve the issue of the

defendant’s entitlement to sovereign immunity.

As this court has observed, “[w]e may affirm a trial court’s deci-

sion that reaches the right result, albeit for the wrong reason.” State

v. Albert, 50 Conn. App. 715, 728, 719 A.2d 1183 (1998), aff’d, 252

Conn. 795, 750 A.2d 1037 (2000).

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

turn all fare revenue over to the state as soon as it was

collected. Id., 103. The defendant’s operating budget

was financed entirely by the state on a month-to-month

basis, requiring close monitoring and regular approval,

and the state contractually was required to purchase

liability insurance for the defendant and to indemnify

it for any tort claims on which it became liable. Id., 86,

88. The overall system was subject to oversight through

the Department of Transportation, thus rendering “all

major issues of policy, planning and operations” within

the control of the state. Id., 103. Finally, a judgment

against the defendant would have had the same practical

effect as a judgment against the state, because the state

ultimately would have had to reimburse the defendant

for any damages award pursuant to the indemnification

requirement, and additionally, it would have had to pur-

chase uninsured/underinsured motorist coverage for its

entire fleet of buses. Id., 104. On the basis of the forego-

ing, the court concluded that five of the eight factors

had been satisfied and, on balance, weighed in favor of

a conclusion that the defendant was an arm of the state.

Id., 102–105. As the following analysis demonstrates,

the facts of the present case are far different from those

presented in Gordon.13

As to the first Gordon factor, we examine the defen-

dant’s enabling legislation to determine whether “the

state created the entity and expressed an intention in

the enabling legislation that the entity be treated as

a state agency . . . .” (Footnote omitted.) Id., 98. This

Despite its insistence that the court should have employed the Gordon

factors in considering its sovereign immunity claim, the defendant has

devoted less than two pages of its appellate brief to its own analysis of

those factors. The defendant argues: “First, [the defendant] was cre-

ated for a public purpose and to carry out a function integral to state

government. [General Statutes] §§ 15-31a and 15-31b . . . . Next, there

is no dispute that [the defendant] is financially dependent on the state

to fulfill its purposes, and that it has received substantial funding from

the state for the State Pier Project. . . . The [Construction Manager at

Risk] Contract provides that [the defendant] through the State of Con-

necticut shall seek to obtain funding for the Target Price. . . . Between

2017 and March 2023, the Bond Commission authorized bonds to [the

defendant] totaling $237,500,000, of which $180,500,000 was allocated

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

court has noted that “[t]his criterion essentially has two

subparts, namely, (1) whether the defendant was created

to the State Pier Project. . . . Accordingly, the state unquestionably

has a vested interest in all of [the defendant’s] rights and properties:

“(b) [The defendant] shall continue as long as it has bonds or other

obligations outstanding and until its existence is terminated by law,

provided no such termination shall affect any outstanding contractual

obligation of [the defendant] and the state shall succeed to the obliga-

tions of [the defendant] under any contract. Upon the termination of

the existence of the [the defendant], all its rights and properties shall

pass to and be vested in the state of Connecticut. General Statutes

§ 15-31b [(b)] . . . .

“Consequently, the state closely monitors and oversees [the defen-

dant’s] budget, expenditures, and appropriations as evidenced by the

several statutory provisions obligating [the defendant] to submit annual

and quarterly reports, annual audit reports, budgets, and operating and

financial statements to both the governor and the joint standing com-

mittee of the General Assembly having cognizance of matters relating

to transportation. See . . . General Statutes § 15-31a (k), (l) and (o) . . . .

“In addition to its involvement in and oversight of [the defendant’s]

finances, the state also is involved in [the defendant’s] operations, includ-

ing staffing. . . . As noted earlier, the state provides [the defendant]

with assistance for the oversight of design, construction, construction

management, and business, legal and procurement services related to

the State Pier Project . . . and provided the project manager for the

State Pier Project. . . .

“Finally, [the defendant’s] directors are state functionaries. The board

of directors consists of, inter alia, the state treasurer, the Commis-

sioner of Energy and Environmental Protection, the Commissioner of

Transportation, the Secretary of [the Office of Policy and Management],

or their designees, one each appointed by the speaker of the House of

Representatives, majority leader of the Senate, minority leader of the

Senate, majority leader of the House of Representatives, minority leader

of the House of Representatives, president pro tempore of the Senate,

and seven appointed by the governor. General Statutes § 15-31a (b).

“For all the foregoing reasons, [the defendant] is unquestionably

an arm of the state entitled to sovereign immunity under the Gordon

criteria.” (Citations omitted; emphasis in original; internal quotation

marks omitted.)

On the basis of the foregoing, the defendant argues that, “at a mini-

mum, six of the eight Gordon factors are undeniably satisfied in this

case supporting the conclusion that [the defendant] is an arm of the

state [that is] entitled to sovereign immunity under these factors.” It is

unclear from the defendant’s argument, however, which of six factors

it contends are satisfied.

The previously quoted argument is essentially identical to the argument

set forth in the memorandum of law in support of the defendant’s motion

to dismiss as it pertains to the consideration of the Gordon factors.

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

by legislation and (2) whether such legislation included

language indicating that the defendant be treated as a

state agency.” Norris v. Trumbull, supra, 187 Conn. App.

215. General Statutes § 15-31a (a) provides: “There is

hereby established and created a body politic and corpo-

rate, constituting a public instrumentality and political

subdivision of the state of Connecticut established and

created for the performance of an essential public and

governmental function, to be known as the Connecticut

Port Authority. The authority shall not be construed to

be a department, institution or agency of the state.” On

the basis of the plain language of § 15-31a (a), it cannot

be disputed that the defendant was created by its enact-

ment. For the following reasons, however, we conclude

that the enabling legislation is highly suggestive of the

legislature’s intent that the defendant is not an arm of

the state that is entitled to sovereign immunity.

First, the language of the enabling legislation desig-

nates the defendant as a “body politic and corporate . . . .”

See General Statutes § 15-31b (a) (1). This court con-

strued similar language, “body corporate and politic,” in

Norris v. Trumbull, supra, 187 Conn. App. 201, when it

considered “whether a regional educational service center

established, pursuant to General Statutes § 10-66a et

seq., by four or more municipal boards of education [was]

entitled to invoke sovereign immunity in a negligence

Moreover, as noted herein, the defendant submitted several documents

in support of its motion to dismiss. Those documents comprise approxi-

mately 150 pages. In its argument, the defendant cites to certain para-

graphs of Hammond’s affidavit, which, in turn, refers to only exhibit

numbers, without identifying which page of each exhibit supports its

argument. Although the defendant’s failure to cite the specific pages

that support its various arguments has hampered this court’s ability to

find support for its claims, we nevertheless have thoroughly reviewed

the record, including all of the exhibits submitted by the defendant in

support of its motion to dismiss. See, e.g., Begley v. State, 234 Conn.

App. 820, 822 n.4, 344 A.3d 982 (2025) (“[a]lthough [i]t is not the role

of this court to scour the record in search of support for a party’s claim

on appeal . . . we nevertheless have carefully reviewed all the evidence

submitted to the trial court on summary judgment” (citation omitted;

internal quotation marks omitted)), cert. granted on other grounds,

354 Conn. 902, 348 A.3d 813 (2026).

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

action . . . .” In Norris, the court reviewed the enabling

statute and concluded, “[r]ather than creating either a

state or municipal agency, we construe the legislature’s

use of the language describing [an entity] as a ‘body

corporate and politic’ as intending to create an inde-

pendent corporate entity that is separate and distinct

from state government.” Id., 219. The conclusion that

the same interpretation should apply in the present case

is bolstered by the language of the defendant’s enabling

legislation that provides that “[t]he [defendant] shall not

be construed to be a department, institution or agency

of the state.” See General Statutes § 15-31a (a).

The distinction between the defendant and the state

or a department or agency of the state is further under-

scored by documents submitted by the defendant in

support of its motion to dismiss. The Memorandum of

Understanding to Facilitate the Governance of the Ports

and Harbors of the State and the Orderly Transition

and Transfer of Related Resources to the Connecticut

Port Authority between Connecticut Department of

Transportation and Connecticut Port Authority and The

Treasurer of the State of Connecticut, signed in June

2016, and the Memorandum of Agreement Regarding

Assistance to be Provided by the Office of Policy and Man-

agement and the Department of Administrative Services

to the Connecticut Port Authority for the Oversight of

Design, Construction, Construction Management and

Business, Legal and Procurement Services Related to

the New London State Pier Project, effective on October

2, 2019, both contain a provision providing that neither

the state nor the other state agencies who are parties to

those memoranda waive sovereign immunity.14 Neither

In the Memorandum of Understanding to Facilitate the Gover-

nance of the Ports and Harbors of the State and the Orderly Transition

and Transfer of Related Resources to the Connecticut Port Authority

between Connecticut Department of Transportation and Connecticut

Port Authority and The Treasurer of the State of Connecticut (MOU),

§ 26 provides: “Nothing in this MOU shall be construed as a waiver of the

State’s or [the Department of Transportation’s] sovereign immunity.”

In the Memorandum of Agreement Regarding Assistance to be Pro-

vided by the Office of Policy and Management and the Department of

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

of those memoranda mention any immunity with regard

to the defendant.

Additionally, § 15-31b (a) (4) provides in relevant part

that, “[t]o accomplish the purposes of the [defendant],

the [defendant] shall have the duty and power to . . . [s]ue

and be sued in its own name, and plead and be impleaded

. . . .” As this court pointed out in Norris, the language

indicating that an entity “can sue or be sued” is “not the

type [of language] that the legislature typically would

use if it intended that an entity be protected by sover-

eign immunity, which protects the state not only from

liability but from being sued in the first instance.” Norris

v. Trumbull, supra, 187 Conn. App. 219. We agree with

the Norris court that this language supports a conclu-

sion that the entity at issue “would not enjoy sovereign

immunity but, instead, would be subject to suit in the

same manner as other entities that do not enjoy sovereign

immunity.”15 Id. This interpretation finds even more

Administrative Services to the Connecticut Port Authority for the Over-

sight of Design, Construction, Construction Management and Business,

Legal and Procurement Services Related to the New London State Pier

Project (MOA), § 26 provides: “Nothing in this MOA shall be construed

as a waiver of the State’s, [the Office of Policy and Management’s] or

[the Department of Administrative Services’] sovereign immunity.”

The defendant contends that the plaintiff did not argue in opposition

to the motion to dismiss that the defendant was not an arm of the state,

but, rather, that the “sue or be sued” language should be construed

as a waiver to the defendant’s sovereign immunity, not as a bar to its

existence. This representation is belied by the record. Our review of

the plaintiff’s opposition to the defendant’s motion to dismiss and the

transcript of the hearing on the motion reveal that the plaintiff clearly

argued that the defendant was not an arm of the state that was entitled

to sovereign immunity. In fact, the plaintiff argued that because the

defendant is not entitled to sovereign immunity, any argument by the

defendant that it did not waive sovereign immunity is “misplaced and

otherwise irrelevant to this case.”

In Norris, this court stated that the trial court in Norris had “referred

to the ‘sue and be sued’ language as supporting its conclusion that the

defendant was not entitled to invoke sovereign immunity, the court

did not base its denial of the motion to dismiss on a finding of waiver.

Because we conclude that the defendant is not an entity entitled to the

protection of sovereign immunity under the circumstances before us,

we do not consider whether sovereign immunity was waived. Instead,

we construe this language as evincing an intent that the defendant is

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

support in the enabling legislation of the defendant in this

case, which further provides that the defendant “shall

have the duty and power to . . . plead and be impleaded

. . . .” See General Statutes § 15-31b (a) (4).

Construing the enabling legislation as a whole, we

conclude with respect to the first of the Gordon fac-

tors that the defendant has not demonstrated that the

legislature intended that it be treated as a state agency,

but, to the contrary, that the defendant not be treated

as such.16 It is difficult to conjure language that would

more definitively establish that an entity is not an arm

of the state, short of the language of the enabling legisla-

tion of the defendant in this case, disavowing its status

as a department or agency of the state. Although the

enabling legislation is only one of eight factors for our

consideration, we place great weight on the legislative

intent evinced by that language.

We turn next to the second factor, which asks whether

the defendant “was created for a public purpose or to

carry out a function integral to state government . . . .”

(Footnote omitted.) Gordon v. H.N.S. Management Co.,

supra, 272 Conn. 98. As quoted previously, the defen-

dant’s enabling legislation states that it was “established

and created for the performance of an essential public and

governmental function . . . .” General Statutes § 15-31a

(a). Section 15-31b (a) further provides, inter alia: “The

purposes of the [defendant] shall be to coordinate the

development of Connecticut’s ports and harbors, with a

focus on private and public investments, pursue federal

and state funds for dredging and other infrastructure

improvements to increase cargo movement through the

ports and maintain navigability of all ports and har-

bors, market the economic development of such ports

not to be treated as an agent of the state for all purposes.” Norris v.

Trumbull, supra, 187 Conn. App. 219 n.12. The same rationale applies

to the present case.

The defendant fails to address this factor, presumably because its

consideration undermines rather than bolsters its position. In fact, at

oral argument before this court, the defendant conceded that the first

Gordon factor does not weigh in its favor.

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

and harbors, work with the Department of Economic

and Community Development and other state, local and

private entities to maximize the economic potential of

the ports and harbors, support and enhance the overall

development of the state’s maritime commerce and indus-

tries, coordinate the planning and funding of capital

projects promoting the development of the ports and

harbors, develop strategic entrepreneurial initiatives

that may be available to the state, coordinate the state’s

maritime policy activities, serve as the Governor’s prin-

cipal maritime policy advisor and undertake such other

responsibilities as may be assigned to it. . . .” The second

Gordon factor, therefore, favors the defendant.

The third factor to consider is whether the defendant

is “financially dependent on the state . . . .” (Footnote

omitted.) Gordon v. H.N.S. Management Co., supra,

272 Conn. 98–99. In support of its argument that it is

financially dependent on the state, the defendant argues

that it “has received substantial funding from the state

for the State Pier Project” and points to the specific

amounts that it has received for this project. Of course,

the fact that an entity receives substantial funding from

the state does not necessarily mean that that entity is

financially dependent on the state. We generously con-

strue the defendant’s argument as an argument that it

is financially dependent on the state. In support thereof,

the defendant refers to Hammond’s affidavit, in which

Hammond averred that the General Assembly appropri-

ates $400,000 each year for the defendant in the state’s

budget and “[t]he State Bond Commission has autho-

rized bonds totaling $237,500,000 to the [defendant]

since 2017; of which $180,500,000 has been allocated

to the project since 2019.”17 Notably absent from the

documents submitted by the defendant, however, is a

budget or financial statement of the defendant reflecting

a complete picture of the defendant’s finances or what

We reiterate that the defendant has not identified the page or pages

of the documents that it submitted in support of its motion to dismiss

on which it relies in arguing that it is entitled to sovereign immunity.

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

percentage of its funding comes from the state.18 In fact,

the documents submitted by the defendant, in addition

to the defendant’s enabling legislation, suggest that

the defendant has other sources of funding that would

undermine a finding that the defendant is financially

dependent on the state. For instance, § 15-31b (a) provides

that one of the defendant’s purposes is to “coordinate the

. . . funding of capital projects promoting the develop-

ment of the ports and harbors . . . .” General Statutes

§ 15-31b (a). To that end, § 15-31b further provides that

the defendant “shall have the duty and power” to, inter

alia, adopt its own budget; “[e]nter into joint ventures

and invest in, and participate with, any person or entity,

including, without limitation, governmental or private

business entities in the formation, ownership, manage-

ment and operation of business entities, including stock

and nonstock corporations, limited liability companies

and general and limited partnerships, formed to advance

the purposes of the [defendant]”; “[r]eceive and accept,

from any source, aid or contributions, including money,

property, labor and other things of value”; “[i]nvest in,

acquire, lease, purchase, own, manage, hold and dispose

of real property and lease, convey or deal in or enter into

agreements with respect to such property on any terms

necessary or incidental to carrying out the purposes

of sections 15-31a to 15-31i, inclusive, provided such

transactions shall not be subject to approval, review or

regulation by any state agency pursuant to title 4b or

any other provision of the general statutes, except (A)

the [defendant] shall not convey fee simple ownership in

any property associated with the ports or harbors under

its jurisdiction and control without the approval of the

State Properties Review Board and the Attorney General,

and (B) as provided in subsection (c) of this section . . . .”

The defendant submitted its 2022 Annual Operations and Project

Report, which lists in its table of contents a section entitled: “Descrip-

tion of the [defendant’s] finances, including operating and financial

statements.” In that section, however, it simply states: “See ‘CON-

NECTICUT PORT AUTHORITY—AUDITED FINANCIAL STATE-

MENTS—FY2022.’ ” Those financial statements, however, are not

included with the defendant’s submission.

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

(Emphasis added.) General Statutes § 15-31b (a) (8), (10),

(11) and (15). The record is devoid of any evidence reflect-

ing the amount of funding that the defendant receives

from any of these sources. There is also reference in the

defendant’s 2022 Annual Operations and Project Report

to federal funding associated with the United States

Army Corps of Engineers as to one of the defendant’s

projects. Although the data provided by the defendant

reflects that it receives substantial funding from the

state, it falls short of establishing that the defendant is

financially dependent on the state.

We next address the fourth Gordon factor, namely,

whether the defendant’s “officers, directors or trustees

are state functionaries . . . .” (Footnote omitted.) Gordon

v. H.N.S. Management Co., supra, 272 Conn. 99. Because

it is undisputed that the defendant’s twenty-one member

board of directors consists primarily of state functionar-

ies or their designees, this factor weighs in favor of the

defendant. See General Statutes § 15-31a (b).19

As to the fifth Gordon factor, whether the defendant

is “operated by state employees”; Gordon v. H.N.S.

General Statutes § 15-31a (b) provides: “The powers of the [defen-

dant] shall be vested in and exercised by a board of directors, which

shall consist of twenty-one voting members as follows: (1) The State

Treasurer, or the Treasurer’s designee, the Commissioner of Energy

and Environmental Protection, or the commissioner’s designee, the

Commissioner of Transportation, or the commissioner’s designee, the

Commissioner of Economic and Community Development, or the com-

missioner’s designee, the Secretary of the Office of Policy and Manage-

ment, or the secretary’s designee, the chief elected official of the town

of New London, or such official’s designee, the chief elected official of

the city of New Haven, or such official’s designee, and the chief elected

official of the city of Bridgeport, or such official’s designee, all of whom

shall serve ex officio; (2) one appointed by the speaker of the House of

Representatives; (3) one appointed by the majority leader of the House of

Representatives, who is the chief elected official of a town with a small

harbor, or such official’s designee; (4) one appointed by the minority

leader of the House of Representatives; (5) one appointed by the presi-

dent pro tempore of the Senate, who is a member or employee of a local

port authority; (6) one appointed by the majority leader of the Senate;

(7) one appointed by the minority leader of the Senate; and (8) seven

appointed by the Governor, one of whom is the chief elected official of a

town with a small harbor, or such official’s designee. Said members of the

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

Management Co., supra, 272 Conn. 99; § 15-31b pro-

vides, inter alia, that the defendant has the power to

employ agents and employees as necessary to fulfill its

purposes and “fix appropriate compensation for such

employees and establish all necessary or appropriate

personnel practices and policies, including those relating

to hiring, promotion, compensation, retirement and col-

lective bargaining . . . .” 20 General Statutes § 15-31b (a)

(14) (A). This authority seemingly is unfettered by the

state. Section 15-31b further provides that the defen-

dant’s officers and employees shall be state employees

for purposes of “group welfare benefits and retirement.”

General Statutes § 15-31b (a) (14) (B). Section 15-31b

therefore seems to indicate that the defendant is not

“operated by state employees” but that its employees

General Assembly and the Governor shall appoint members of the board

to succeed appointees whose terms expire and each member so appointed

shall hold office for a period of four years from the first day of July in

the year of his or her appointment. Appointed members shall include

individuals who have experience and expertise in international trade,

marine transportation, finance or economic development. The board of

directors shall select the chairperson from among the members of the

board, who shall serve for a term of two years. The board of directors

shall select a vice-chairperson from among its members and such other

officers as it deems necessary.”

Specifically, General Statutes § 15-31b (a) provides in relevant part

that the defendant “shall have the duty and power to . . . (14) Employ

such assistants, agents and other employees as may be necessary or

desirable to carry out its purposes. (A) The executive director and such

employees shall be exempt from the classified service and, except as

provided in subparagraph (B) of this subdivision, shall not be employees,

as defined in subsection (b) of section 5-270. The [defendant] shall fix

appropriate compensation for such employees and establish all neces-

sary or appropriate personnel practices and policies, including those

relating to hiring, promotion, compensation, retirement and collective

bargaining, which need not be in accordance with chapter 68, and the

[defendant] shall not be an employer, as defined in subsection (a) of

section 5-270, and may engage consultants, attorneys and appraisers

as may be necessary or desirable to carry out its purposes in accordance

with sections 15-31a to 15-31i, inclusive. (B) For purposes of group

welfare benefits and retirement, including, but not limited to, those

provided under chapter 66 and sections 5-257 and 5-259, the officers

and all other employees of the [defendant] shall be state employees. The

[defendant] shall reimburse the appropriate state agencies for all costs

incurred by such designation . . . .”

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

enjoy certain benefits afforded to state employees. In his

affidavit, Hammond averred that certain state employees

have provided services to the defendant, the defendant’s

employees are subject to the state’s code of ethics and are

assigned state employee identification numbers and are

eligible to receive medical and retirement benefits from

the state of Connecticut. Hammond’s averments fall

short of demonstrating that the defendant is “operated

by state employees.” See Gordon v. H.N.S. Management

Co., supra, 272 Conn. 99. Indeed, the defendant does not

actually argue that it is operated by state employees,

but, rather, asserts that the state is “involved” in the

defendant’s “staffing” and that the state provided the

project manager for the project. We cannot conclude,

on the basis of the record before us, that the defendant

has demonstrated that it is operated by state employees.

As to the sixth and seventh Gordon factors, we consider

whether “the state has the right to control the [defen-

dant]” or whether the defendant’s “budget, expenditures

and appropriations are closely monitored by the state

. . . .” (Footnote omitted.) Gordon v. H.N.S. Management

Co., supra, 272 Conn. 99–100. The defendant argues that

“the state closely monitors and oversees [its] budget,

expenditures and appropriations as evidenced by the

several statutory provisions obligating [it] to submit

annual and quarterly reports, annual audit reports,

budgets, and operating and financial statements to both

the governor and the joint standing committee of the

General Assembly having cognizance of matters relating

to transportation.”21 We disagree with the defendant’s

contention that the requirement that it file annual or

In support of this argument, the defendant cites the following sec-

tions of General Statutes § 15-31a: “(k) On or before December fifteenth

of each year, the board shall report, in accordance with the provisions

of section 11-4a, to the Governor and the joint standing committees

of the General Assembly having cognizance of matters relating to

transportation, commerce and the environment, summarizing the

authority’s activities, disclosing operating and financial statements

and recommending legislation to promote the authority’s purposes.

“(l) Not later than seven days after receiving an audit of the authority

conducted by an independent auditing firm, the board shall submit, in

accordance with the provisions of section 11-4a, to the joint standing

committees of the General Assembly having cognizance of matters

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

quarterly reports with the General Assembly constitutes

control or close monitoring by the state. Section 15-31b

provides, inter alia, that the defendant shall have the

duty and power to develop its own organizational and

management structure, adopt rules for the conduct of

its business, adopt an annual budget and plan of opera-

tions, make and enter into contracts and agreements

that are necessary to the conduct of its business, enter

into joint ventures, invest in or participate with any

person or entity in the formation of other business enti-

ties and invest in, acquire, lease, purchase, own or enter

into agreements with respect to real property with the

limitation that it may not convey fee simple ownership

of property associated with the ports and harbors with-

out the approval of the State Properties Review Board

and the Attorney General.22 General Statutes § 15-31b

relating to appropriations, commerce, the environment and transporta-

tion a copy of each such audit. . . .

“(o) On or before January 1, 2022, and annually thereafter, the board

of directors shall submit a report, in accordance with the provisions

of section 11-4a, to the Governor and the joint standing committee

of the General Assembly having cognizance of matters relating to

transportation. Such report shall include, but need not be limited to:

(1) A description of the projects undertaken by the authority in the

preceding year; (2) a list of projects which, if undertaken by the state,

would support the state’s maritime policies and encourage maritime

commerce and industry; (3) a description of the authority’s finances;

(4) recommendations for improvements to existing maritime policies,

programs and facilities; and (5) recommendations for legislation to

promote the authority’s purpose.”

Specifically, General Statutes § 15-31b (a) provides in relevant part

that the defendant “shall have the duty and power to . . . (5) Develop an

organizational and management structure that will best accomplish the

goals of the authority concerning Connecticut ports and harbors . . .

“(7) Adopt rules for the conduct of its business, which shall not be

considered regulations as defined in section 4-166;

“(8) Adopt an annual budget and plan of operations, including a

requirement of board approval before the budget or plan may take effect;

“(9) Make and enter into all contracts and agreements that are neces-

sary, desirable or incidental to the conduct of its business, subject to

the requirements of section 15-31n and chapter 62;

“(10) Enter into joint ventures and invest in, and participate with, any

person or entity, including, without limitation, governmental or private

business entities in the formation, ownership, management and opera-

tion of business entities, including stock and nonstock corporations,

Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co.

(a) (5), (7) through (10) and (15). There is nothing in the

record before us suggesting that the state has any direct

oversight or control over the defendant, its property or

its operations other than to conduct an annual audit of

limited liability companies and general and limited partnerships, formed

to advance the purposes of the [defendant]. . . .

“(11) Receive and accept, from any source, aid or contributions, includ-

ing money, property, labor and other things of value;

“(12) Award grants and subsidies, make loans and provide other forms

of financial assistance to any person or entity under a written policy,

adopted in accordance with the provisions of section 1-121, setting forth

the eligibility criteria, application process, and such other provisions as

may be necessary or desirable to carry out the purposes of this section;

“(13) Charge reasonable fees for the services it performs and waive,

suspend, reduce or otherwise modify such fees in accordance with writ-

ten criteria established by the authority, and provided, that no change

may be made in fees without at least thirty days prior notice, published

in accordance with the provisions of section 1-121;

“(14) Employ such assistants, agents and other employees as may be

necessary or desirable to carry out its purposes. (A) The executive direc-

tor and such employees shall be exempt from the classified service and,

except as provided in subparagraph (B) of this subdivision, shall not be

employees, as defined in subsection (b) of section 5-270. The [defendant]

shall fix appropriate compensation for such employees and establish all

necessary or appropriate personnel practices and policies, including those